IN THE EDUCATION LABOUR RELATIONS COUNCIL
HELD AT ENGCOBO
In the matter between
NAPTOSA obo NYAMEKA FADANE First Applicant
NAPTOSA obo VUYO VAVA Second Applicant
and
EDUCATION DEPARTMENT OF EASTERN CAPE First Respondent
BONGEKA NGXANGANA Second Respondent
MATHABO CAROLINE MAKANGALA Third Respondent
SIYABULELA ZWENI Fourth Respondent
NOLITHA LUZIPHO Fifth Respondent
NONKANYISO MBONO Sixth Respondent
JERRICK BUTSHINGI Seventh Respondent
PANELLIST: YOLISA NDZUTA
HEARD: 9 & 10 APRIL 2024, 13 & 14 MAY 2024, 19 TO 21 JUNE 2024
DATE OF AWARD: 27 JULY 2024
SUMMARY: Labour Relations Act 66 of 1995 – Section 186(2)(a) – alleged unfair conduct relating to the provision of benefits
SUMMARY: Whether the Respondent perpetrated an unfair labour practice relating to promotion by failing to shortlist the Applicants.
ARBITRATION AWARD
PARTICULARS OF PROCEEDINGS AND REPRESENTATION
1. The matter was set down as an arbitration to be heard before me on several days. During these proceedings, the first and second applicants, Mrs. Nyameka Fadane and Mr. Vuyo Vava was represented by Mr. Aaron Mhlontlo of NAPTOSA while the First Respondent, Eastern Cape Department of Education was represented by Mr. Thando Makina.
2. The parties confirmed receipt of the notice of set down and upon the presentation of testimony all pre-liminary issues were resolved.
THE ISSUE IN DISPUTE
3. I am required to determine whether an unfair labour practice was committed by the first Respondent relating to the failure to shortlist the first and second applicant as it relates to the appointment of the second to the seventh respondent in the six Deputy Chief Education Specialist -DCES- (Circuit Manager) posts.
THE BACKGROUND TO THE DISPUTE
4. In these proceedings the Applicants referred an unfair labour practice relating to the first Respondent’s failure to shortlist the applicants.
5. The Applicants claimed that they were suitably qualified for shortlisting and appointment.
6. The Applicants further claimed that they were better qualified than some of the successful candidates who were ultimately appointed.
7. The First Respondent challenged the above.
SURVEY OF EVIDENCE AND ARGUMENT
8. The applicants testified in support of their respective cases and called two (2) further witnesses -Mr Khayalethu Zinja and Mr Silekwa while the Respondents relied on the testimony of one witness (Dr Mceleli). I have hereinbelow summarised the viva voce evidence (testimonies) of the proceedings and this summary should not be considered as the transcript of the arbitration proceedings.
Applicants’ Versions
9. Mrs Fadane (the First Applicant) testified as follows:
9.1 She was appointed as an educator since March 1993 and is currently employed by the Respondent as a Principal since 2019.
9.2 He took issue with Mr Matshotane’s inclusion in the panel given his relation with Ms Ngxangana (the second Respondent).
9.3 He noted that although the second to the seventh Respondents are claimed to have acted as circuit managers, they did not provide valid letters of appointments.
9.4 He noted upon perusal of the masterlist some of the Respondents captured the institution wherein they executed services inaccurately and the same was repeated insofar other information. Therefore, the employer relied upon inadequate information.
9.5 Upon comparison with the candidates who were shortlisted, he (the second Applicant) has more experience as a Principal therefore the first Respondent’s exhibited bias towards the second to seventh Respondents.
9.6 She testified that even on a consideration of the appointment of the shortlisting panel and how it was constituted, it is significantly perceptible that there was an irregular amendment of the official in that the person appointed as the chairperson (Mr N P Mtshotane) did not end up chairing the shortlisting panel. It is known that any change in the shortlisting and interview panel ought to be affected by the official who enjoys the requisite statutory powers.
9.7 When comparing herself to the credentials of the second to the seventh respondents as per the masterlist, her exclusion was unreasonable even on application of the shortlisting criteria. Surprisingly on the basis of the masterlist, some of the shortlisted candidates did not meet the criteria of the bulletin nor did they meet the criteria imposed by the shortlisting and interview panel.
9.7.1. When compared to the Second respondent, she (the applicant) had actual teaching experience reflected in the masterlist. Also, she enjoyed more workplace experience than the Second respondent.
9.7.2. In comparison to the fourth respondent, she enjoyed more teaching experience and the same candidate did not meet the sifting criteria imposed by the panel.
9.7.3. The Employer’s decision to shortlist thirteen (13) candidates for six (6) vacancies wherein there were Three Hundred and Ten (310) applicants who expressed interest was overtly unfair.
9.8 She testified that upon consideration of the criteria used by panel for sifting and interviewing was unfair given that it did not form part of the advertisement and was exclusionary.
9.9 It was irregular for the second to the seventh respondents to be appointed before the vetting and verification was concluded.
10. The latter testimony was challenged and under cross-examination the following was discovered:
10.1 Her testimony was based on the masterlist although in her understanding, it was not a norm for a person who has a few years of experience to be appointed as an acting circuit manager.
10.2 The recruitment panel relied on the masterlist which was not accurate.
10.3 Organised labour unions observed the process of the shortlisting and interviews, and both indicated their satisfaction in their respective declaration relating to the recruitment process.
10.4 The employee’s experience in recruitment is most as an observer.
10.5 The employer’s version regarding the sifting process changed and is unclear however the first applicant was sifted out during phase two (or due to sifting criteria two).
10.6 The PAM document does not provide what the minimum number of candidates ought to be shortlisting.
10.7 The relief sought by the first Applicant was to ensure that learners and schools are severed by the best possible candidates as the circuit managers. Also if the relief sought is granted, the learners will not be affected whilst another process of recruitment is undertaken.
10.8 The first applicant’s dispute is not pertaining the specific people who were appointed rather she (the first applicant) was better than some of the respondents appointed.
11. Mr. Vuyo Vava (the second applicant) testified as follows:
11.1 He is employed by the first Respondent since 1996 and has been a Principal for twelve (12) years and eight (8) months.
11.2 Upon learning of the panel members he took issue with Mr Mtshotane’s inclusion in same panel given his (Mr Mtshotane) relation with Ms Ngxangana (the third respondent).
11.3 He noted that although the second to the seventh Respondents are claimed to have acted as circuit managers, they did not provide valid letters of appointments.
11.4 He noted upon perusal of the masterlist some of the respondents captured the institution wherein they executed services inaccurately and the same was repeated insofar other information. Therefore, the employer relied upon inadequate information.
11.5 Upon comparison with the candidates who were shortlisted, he (the second applicant) has more experience as a Principal therefore the first Respondent’s (through its panel) exhibited bias towards the second to seventh Respondents.
11.6 The sifting criteria imposed by the panel did not form part of the advert also the panel did not apply the sifting criteria consistently for all the job applicants who expressed interest for example the second and third Respondents were appointed yet within the masterlist there is no mention of either of them being a principal.
11.7 A comparison with the qualifications of the shortlisted candidates, one would note that some of the shortlisted candidates were not as qualified as the second Applicant.
11.8 It is noteworthy that the official who was appointed as the chairperson of panel had his capacity (or designation) changed without an official letter being issued nor was the presiding chairperson of the panel supported by an official letter of appointment as chairperson therefore the panel was constituted illegally or irregularly. Also, two of the panel members were not appointed in terms of the official memo and/or appointment letter signed by the district director.
11.9 Only the district director may appoint panellists subject to the chief director’s approval. The latter was not complied with insofar as the changes effected to the panel that conducted the sifting, shortlisting and interviews for vacancies filled by the second to seventh Respondent.
11.10 In his experience relating recruitment, the norm is for the parties to follow and comply with the Department of Education recruitment policy which states amongst other things that there must be at least three (3) candidates shortlisted and no more than five (5) candidates shortlisted per vacancy. The panel transgressed the latter therefore their conduct was irregular because they ought to have shortlisted no less than eighteen (18) candidates thus the panel exhibited bias.
11.11 On consideration of the employer’s conduct juxtaposed with the PAM document, the employer consistently breached the PAM document. The latter is also evident from the masterlist given the inaccuracies and how evident it is that sifting was not done also, given that the second to seventh Respondents were appointed in the absence of verification.
11.12 A consideration of the scheduling of interviews and the candidates who were ultimately appointed, this is another example of the panel imposing a predetermined decision and bias.
11.13 A perusal of some of the letters of appointment filed teaches that the employer cannot sustain that all the respondents (second to seventh) were acting as circuit manager at the time of the recruitment, there are contradictions and inaccuracies in the appointment letters filed. Some of the latter appointment letter speak of an applicant being ‘requested to take care of a circuit’ as opposed to being appointed in compliance of the departmental polices and regulations.
12. The latter testimony was challenged, and the following was learned from cross-examination.
12.1 The apprehension of bias stems from the inclusion and ultimate appointment of Respondents two (2) to seven (7) at the cost of noncompliance and transgression of policies.
12.2 The issue of Mr Mtshotane being related to Mrs Ngxangana only pertains to Mr Mtshotane having not declared his relation and not recusing himself as a panel member regardless of the form of relation as the panel member was compromised due to the conflict of interest.
12.3 When it was put to the witness that Mr Mtshotane scored Mrs Ngxangana worse than the other panel members, he responded that regardless of the scoring Mr Mtshotane’s presence was irregular given his relation and breach of conflict of interest.
12.4 The employer (first Respondent) did not advise the second Applicant (as a job applicant in this process) of the outcomes of sifting and scheduling of interviews.
12.5 When referred to the declaration by organized labour, this applicant testified that the declaration by organized labour is not a reflection on behalf of his as an individual and one of the job applicants given that collective labour may have overlooked or may been oblivious to the irregularities.
12.6 When asked to link the proposed bias this applicant referred to the fact that Mrs Ngxangana being automatically shortlisted although she didn’t annex sufficient proof of her meeting the requirements as advertised or proof of having acted in the position.
12.7 When asked to link any irregularities of the process with the second applicant ultimately not being shortlisted, this applicant emphasised that he is more qualified and had more experience than some of the appointed respondents.
12.8 It was put to the applicant that there is no policy precluding employees of the first Respondent from requesting an opportunity to act in a senior vacant post, the applicant then testified that although there isn’t a policy precluding employees from requesting to act, its evident that the process of placing an official to act is regulated.
12.9 When asked to link the latter with the unfairness claimed, the witness testified that Mrs Ngxangana was shortlisted on the basis of having acted yet the recognition of acting is not regular and compliant with the applicable law, policies and regulations also notwithstanding Mrs Ngxangana was not more experience and better qualified than him (the second Applicant).
12.10 The verification of the successful parties was conducted by the South African Police Services, the Department of Home Affairs and Department of Tertiary Education and Training amongst others.
12.11 The applicants can only infer (without proof) that the employer employed respondents two (2) to seven (7) following positive verification however same is not the correct process within the policies and regulations of the employer.
12.12 When it was put to the applicant that the first Respondent did satisfy itself of the second to seventh Respondents having been successfully verified, this applicant testified that in the absence of the verification report all one can do is infer or assume.
12.13 When it was put to the applicant that the dispute undermined the rights of a child to education, the applicant emphasised that the leaners are learning and schooling without disruption regardless of the dispute. Also the applicant insisted that he is not seeking a halt of the functions of the employer (the first Respondent) rather are seeking that the best candidates are appointed as circuit managers following a compliant and fault-free recruitment process. Furthermore, the second Applicant emphasised that the second to seventh Respondents were not enforced to attend the arbitration proceedings save for when they were going to testify also given that a circuit manager is not school based, a request to reverse their appointment will not impact the functions of the employer as the first Respondent has functioned without circuit managers.
12.14 When it was put to applicant that the changes to the panel was not an irregularity and his version of the panel being constituted irregularly was challenged, he testified that the names reflected on the Internal Memorandum differ from those who ultimately constituted the panel and there wasn’t a further Internal Memorandum issued for the changed names.
12.15 When asked to link any irregularity relating to the panel’s composition to the applicant’s exclusion from shortlisting, the second applicant testified that owing to the panel’s composition the people appointed were not deserving and the panel failed to appoint the best candidates of the Three Hundred and Ten (310) job applicants.
12.16 When it was put to this applicant that the sifting and shortlisting criteria was necessary and was uniformly applied, he testified that he had a gripe with selection criteria 4 & 5 in that both were exclusionary, and these criteria was not reflected in the advertisement regardless of the purpose of the criteria being applied post submission by the job applicants. Also this applicant accepted that the implementation of sifting and shortlisting criteria is to filter the applicants to determine the pool of the best job applicants for interview purposes however he emphasised that the filtering must not be discriminatory and arbitrary.
12.17 When it was put to this applicant that of the second to seventh Respondents those who acted, had done so initially without emoluments, this applicant testified that the appointment letter ought to have declared so as such the letters filed supported his inference.
12.18 When it was put to this applicant that the inaccuracies emphasised were obvious errors and mistakes on the part of whomever who was preparing each document, the witness testified that the employer cannot hide behind inaccuracies being obvious errors.
12.19 When asked why this applicant considered himself the best candidate, he testified that he was better experienced and better qualified when compared to some of the respondents. He also testified that if he was shortlisted and given the opportunity to be interviewed, he would have performed better than respondents two (2) to seven (7).
12.20 When asked why he testified that the first Respondent’s decision to shortlist thirteen (13) was irregular given that there isn’t a policy that enforces a minimum number of shortlisted candidates, this applicant testified that given that there were Three hundred and ten (310) job applicants and there were six (6) posts, it was unreasonable to shortlist thirteen (13) given the direction of the PAM document.
13. Mr Khayalethu William Zinja (the applicants’ third witness) testified as follows:
13.1 He has been an educator employed by the first Respondent since 1991 and he is currently a principal.
13.2 He was a union representative delegated by NAPTOSA to observe the recruitment (shortlisting and interviews) process that resulted in the appointment of the second to seventh Respondents.
13.3 On the 24th of October 2023, the panel met and Mr Mtshotane introduced everyone and the shortlisting process commenced. During the shortlisting process there were no documents used rather laptops were shared between the respective panel members and observers.
13.4 Upon the declaration of conflict of interest, none of the panel members declared relation to the job applicants.
13.5 There wasn’t any verification conducted during the recruitment.
13.6 Usually sifting is done by HR before the panel meets for shortlisting however in this case that was not the case and the masterlist was not present during the shortlisting rather there was a use of laptops. The panel would read the name of the applicant then after viewing on the laptop, a decision would be made. The latter process was proposed by Mr Mtshotane.
13.7 The observers did raise a concern with the latter adopted process however the concern did not develop into an objection. Mr Mtshotane expressed that due to his experience of previously appointed circuit managers vacating the post soon after appointment, the preference of candidates who were residing within the district was not heavily objected to.
13.8 Wherein there were gaps pertaining to the job applicants’ information, there wasn’t any verification to address inaccuracies and gaps. There were no applications used to verify inaccuracies or any gaps information. For example, when the experience of the fourth Respondent was noted as inaccurate on the masterlist (on the laptop), we relied on what could be confirmed by the district director (Mr Mtshotane) and other colleagues to overcome the issue of information gaps.
13.9 Once shortlisting was completed, Mr Mtshotane advised that the shortlisted candidates would be interviewed in Cofimvaba on the same day on different time slots. The chairperson of the panel did not intervene insofar as the suggestion of Mr Mtshotane regarding the interviewing of the candidates.
13.10 The grouping and scheduling of the interviews was not decided in the presence of the observers. The shortlisted candidates were contacted per phone call and advised of their respective times.
13.11 On the day of the interviews, the first group of interviewees were placed in a particular room and he noticed that of all the candidates present for the morning session, those whom were acting as circuit managers were present.
13.12 This witness’s reflection of the process was good because there was no discriminative practices or overtly unfair processes adopted.
14. The latter testimony was challenged and the following was learned from cross-examination:
14.1 The applicants claim pertaining to the process being unfair would be based on their perspective however although they observed irregularities, they addressed the concerns in compliance with the procedure enforced by the panel.
14.2 When asked whether there was any prejudicial conduct by the panel and the process, the witness testified that there were criteria enforced that was prejudicial to some job applicants. It was also irregular and prejudicial for them to be one (1) post number for six (6) posts.
14.3 When asked to link the prejudice to the applicants, the witness testified that its due to their exclusion from the shortlisted candidates.
14.4 The use of recruitment for selection process was new and different from the normal and established practice.
14.5 When asked how the witness learned of some of the shortlisted candidates having been acting circuit managers at the time, the witness testified that the district director (Mr Mtshotane) advised the panel members which job applicants were acting in the posts at the time.
14.6 When asked whether the witness objected to the process, he testified that he objected to the process and raised a concern of the scheduling of interviews.
15. Mr Mzoli Osbourne Voyiya (the applicants’ fourth witness) testified as follows:
15.1 He was appointed as an educator on the 10th of April 1996 and is currently a Principal at Lundi Public School since 1 January 2015.
15.2 He holds Masters in Education Management as his highest qualification.
15.3 He formed part of the shortlisted candidates for the recruitment of the post bearing the reference DCESCHE15/09/2023 regarding the appointment of circuit managers.
15.4 Of the listed candidates, he knows the second Respondent who was an acting circuit manager for Elliot circuit at the time of the interviews. The second Respondent was introduced by the outgoing circuit manager (Mr Dingiswayo) before his retirement in a principals’ meeting. He used the words “She will take care of the circuit upon my retirement”. The latter was queried and a concern was raised in that regard, however the latter query and concern was ignored.
15.5 He noted that his name was not enlisted on the schedule of interviews yet he was called to attend his interview which was scheduled for 11:00. Interestingly enough on the schedule, the fourth Respondent is placed for his time of 11:00.
15.6 He remembered that on the day of the interviews he arrived on time and upon entering, he was directed to remain with a group which had to complete stage 1 of the interviewing. Surprisingly enough, seventh Respondent who arrived just after him was allowed to proceed to stage 2 (which was being concluded in a different room) of the interviews and was absolved from stage 1 of interviews. Interestingly enough, the interview schedule reserved seventh Respondent’s interview for 13:30 to 14:00.
15.7 He was not advised of the outcomes of the interviews, rather he heard it through the grapevine.
15.8 He noted that all the successful candidates (Respondents 2 to 7) were predetermined, this is more so considering that the seventh Respondent was pried into the group and was excused from a stage of the interview process that had specific tasks.
16. The latter testimony was challenged and the following was learned from cross-examination:
16.1 The process of interviews was not fair and organized labour was absent when the groups were separated or when the seventh Respondent was rustled and excused from a task of the interview process. The latter is clearly bias conduct.
16.2 This witness did not declare a dispute regarding the latter being unfair conduct.
16.3 The witness doesn’t know all of the circuit managers within the employment of the first Respondent.
16.4 This witness met the requirements and job specifications as advertised and was shortlisted after the panel had sifted.
16.5 In his opinion the panel and first Respondent exhibited bias and favouritism towards those who were interviewed first given they were appointed.
17. Mr Mawabo Silekwa (the applicants’ fourth fifth witness) testified as follows:
17.1 He commenced employment with the first Respondent on the 17th of February 1994 and is currently a Principal at Ngubesizwe Secondary School since 18 July 2011.
17.2 He holds Bachelor Degree (BEd in Curriculm Studies) as his highest qualification.
17.3 He formed part of the shortlisted candidates for the recruitment of circuit managers under post DCESCHE15/09/2023.
17.4 He was invited to the interviews per a telephone call. The interviews were held at Comfimvaba Science Centre. According to the interview schedule, his interview was supposed to be at 14:30 to 15:00.
17.5 Surprisingly enough, he was directed to arrive at the interview venue by 11:00 which he did. Upon arrival at the interview venue, he noticed that the colleagues were separated with some doing tasks in 1 room and others doing further tasks in another room which was understood to the second stage of the interview process.
17.6 He learned that the seventh Respondent (Mr Butshingi) who had arrived late was inserted into the second stage.
17.7 He was directed to execute the tasks of the first stage of the interview, however Mr Butshingi (the seventh Respondent) was exempted from the first stage. When the latter was raised as a concern, the deputy director HR (Mrs Benja) directed that Mr Butshingi was expected earlier.
17.8 He noticed that during the interview with the panel (second stage) the panel was disinterested and rushed him to finish.
17.9 A consideration of the interview schedule and the candidates who were ultimately appointed led one to conclude that the panel had predetermined who would be appointed. The latter exacerbated the conclusion and the suspicion is the grouping and the conduct of Mr Butshingi (Respondent seven) being smuggled and exempted from tasks of the interview process.
17.10 The information is disseminated to circuit and district Principals per Principals’ meetings and circuit management’s meetings for formal information, however other less formal information can be shared via WhatsApp groups.
17.11 Given that the process led to the suspicion of bias one concluded that the outcome was predetermined hence the applicants considered it an unfair labour practice.
18. The latter testimony was challenged and the following was learned from cross-examination:
18.1 The similarities of his testimony with Mr Voyiya is based on the fact that they had the same experience.
18.2 When asked to link his experience with any unfairness claimed by the applicant, the witness testified that he experienced a continuation of unfairness which possibly commenced as early as when they were excluded from the recruitment process. What he experienced is an extension of the unfair labour practice per the conduct of the employer because it proves that the process was predetermined.
18.3 This witness did not declare a dispute to prosecute the unfair conduct because the applicants had already declared a dispute to challenge the process.
18.4 The witness testified that the conduct of the employer in leading to an apprehension of a predetermined process, made one to consider their conduct was a gross irregularity regardless of the response from the organised labour observers because the unions did not observe what the applicants’ and the witness’s experienced.
18.5 The witness testified that the panel’s conduct of imposing its shortlisting criteria was grossly unfair conduct because their panel’s conduct excluded the applicants from the process, given that absence of the gross unfairness of the employer, the applicants may have met the criteria for appointment.
18.6 It was put to the witness that its perplexing that he failed to protest the unfairness he experienced and did not refer his own dispute. He responded that he was avoiding the redundancy of referring a dispute whereas the applicants had already referred a dispute.
The Respondent’s Case:
19. The respondens trelied on the testimony of one witness being Dr Mceleli who testified as follows:
19.1 He is the district director of the Joe Gqabi District in the employment of the first Respondent. He has been involved in recruitment for many years and has been involved in the recruitment of many officials including the Chief Education Specialists which are the director superior of the DCES post.
19.2 During the recruitment of the DCESCHE15/09/2023 post, it was his first experience using the e-recruitment process.
19.3 He was the chairperson of the panel that shortlisted and interviewed in relation to the recruitment for the DCES (circuit managers) for DCESCHE15/09/2023.
19.4 As the chairperson he ensured that the sifting was done as he developed the shortlisting criteria to establish the list of interviewees.
19.5 Given the complexities of this recruitment process, they (as a panel) decided to adopt a consultative process that included the unions as participatory observers.
19.6 The verification of information was done by the panel relying on information they (the panel) could confirm themselves. From the latter the criteria that was decided was then imposed to establish the pool of interviewees that was shortlisted. The focus of the criteria was equality and performance which was not objected to by the present union officials. The union officials even accepted the proposal for them using fused sifting given the complexities faced.
19.7 He disputed that there was any unfairness exhibited in the process adopted and implemented given that they (the panel) treated every job applicant equally.
19.8 Regarding any notion of there being conflict of interest, none of the members declared and the unions did not object. More importantly its noteworthy to consider that relation is based on surname or blood relation. Due to there not being a sharing of surname and blood relation between a panel member and a job applicant, there was no conflict of interest. Lastly there was no influence of Mr Mtshotane because he was not the chairperson, the final decision was made by him as the chairperson which was supported by the present union members.
19.9 The selection criteria that was used to shortlist was developed as follows:
(i) Phase 1 was considering applicants who met the bare minimum of the job specifications and requirements. Here we took out the candidates that met the criteria and would then after using the masterlist as a guide download one’s curriculum vitae and verify any claims per information or other official. Wherein there were gaps in information in the masterlist, they used the e-recruitment to obtain the outstanding information.
(ii) Phase 2 was considering the objective of equality therefore sought candidates (from those who were left) and reached a pool of 22 wherein they scruitinised them per phases 3 to 5.
(iii) Phase 3 was considering the central objective of women empowerment and therefore selected 3 who women to be shortlisted.
(iv) Phase 4 then sought the best performing Principal to ensure that they upheld the other objective of encouraging performance within the province which resulted in 5 job applicants being selected.
(v) Phase 5 sought to address the sector within their schooling that is unique and growing which is Full Service Schools, the latter resulted in the selection of 1 candidate.
19.10 Any notion that there was no sifting is disputed as they adopted fused vetting with the support of the unions. Everyone present at the shortlisting and interviews understood the complications occasioned by the e-recruitment system.
19.11 The reason they adopted the above and were adamant on the selection criteria is because they believe that the children as the people who must mostly benefit from the officials must be best served. To further uphold the latter, they even enforced that the recommended people are vetted to protect the children’s rights.
19.12 In terms of the recruitment process, one starts with recommendation before vetting is done.
19.13 The interviewing and shortlisting process was recorded by a scribe and there were no voice recordings used given resource shortages.
19.14 Any issues with resources should not be reduced to non-compliance or even irregularity. There was no unfairness exhibited and the applicants were not prejudiced. Also the union observers who played a participatory role and they (the unions) did not object to anything. Importantly the applicants cannot claim unfairness for processes that they were not party to.
19.15 The appointment of the second to seventh respondents has been beneficial to the first Respondent as an employer as such this district has become more competitive since their employment.
20. The latter testimony was challenged and the following was learned from cross-examination:
20.1 This witness’s appointment was per a letter which was received from HR after the approval by the relevant official. HR can assist with the appointment letter.
20.2 When it was put to the witness that he was not appointed as the chairperson of the panel rather he assumed the role without being duly appointed. He maintained that he was appointed as the chairperson of the panel and Mr Mtshotane was appointed as a normal member while he was the chairperson. There is an agreement and practice that the district director of the district which is conducting the recruitment cannot chair the process.
20.3 It was put to the witness that the panel he presided was not properly constituted.
20.4 The internal memorandum and appointment letters for the specific panel that presided over the recruitment of the second to seventh Respondent was issued and ought to have been included as documents from the employer (absent from the bundle).
20.5 It was put to the witness that HR doesn’t enjoy the delegated authority to appoint as he suggested. He also testified that the internal memorandum may have combined the posts for recruitment however HR can best explain the issue because he did not form part of the recruitment of the other posts reflected on the internal memorandum.
20.6 When referred to the appointment letter of Mr Mtshotane, he disputed it and referred to it as a mistake that the author of the document can explain. He also referred to the practice that prevented a district director from presiding over the recruitment within his own district.
20.7 When it was put to the witness that the official with the requisite delegated authority did not appoint him he disputed that. It was placed to the witness that an appointment letter follows an internal memorandum which he agreed but maintained that the appointment of Mr Mtshotane as the chair to preside a recruitment process within his district is an error as it would be contradiction of established practice.
20.8 When it was put to the witness that the minutes of the interviews did not reflect that sifting was as he suggested, he testified that it’s a mistake by the scribe. He testified that sifting was done as a fused process considering the masterlist and candidate CV’s using the availed laptops.
20.9 When referred to inaccuracies in the masterlist, the minutes and any oversight (or contradiction) the witness considered those inaccuracies as not fatal and referred to them as human error.
20.10 The witness was part of the team that were trained relating to e-recruitment pending amendment of the PAM document. The training advised that those who do not meet the minimum requirements of a post would be sifted out by the programme. – testified that their fused sifting was to exclude those who didn’t meet the requirements however one who didn’t have a driver’s license and ought to have been excluded was shortlisted.
20.11 The witness testified that during shortlisting and interviews, the verification process also included using the local district director which formed part of the panel to confirm an applicant’s missing information and qualifications although they (the panel) did not have access to some of the further information (e.g the EMIS report and school results) required at the time of shortlisting.
20.12 When it was put to the witness that including the acting applicants was unfair and resulted in the exclusion of the applicants, the witness testified that although the then acting circuit managers were included however the focal point was performance of the district also the preference that was applied was to locally residential applicants which included many other applicants. The witness also emphasised that the applicants were not shortlisted because on considering the comparative ability (on paper) they (the applicants) were not the best candidates.
20.13 When it was put to the witness the decision to shortlist 13 applicants as opposed to the direction of the PAM document and the department of education regulations, he responded that they (the panel) acted in accordance to the PAM document because it directed no more than 5. The witness also testified that the shortlisted candidates were the best they (the panel) could find from the job applicants.
20.14 When asked how they (the panel) confirmed that the then circuit managers were acting, he testified that it was confirmed by the district director. When asked who enjoys the power to appoint an official to act, the witness testified that when an educator seeks to act with remuneration, the acting is reported to the Head Office however if the acting is without emoluments then the district director may approve the acting capacity. The witnesses also testified that a DCES can be appointed by the acting CMC Head if the requisite delegated power is granted.
20.15 When asked to explain the level of participation of observers, the witness testified that although the union observers could not make a decision relating to the process, they were allowed to have an input in the process. They were asked to object wherein there were processes.
20.16 Comparatively speaking the panel satisfied themselves (save for masterlist and document issues) the shortlisted candidates were better than the applicants and the latter is not unfair.
21 The parties submitted closing submissions which the last of was filed on the 10th of July 2024. Their respective submissions were considered and shall be incorporated in the analysis of the argument.
ANALYSIS OF THE EVIDENCE AND ARGUMENT
22 The closing submissions filed by the parties to support their respective cases were considered in conjunction with the viva voce evidence and submissions made during the hearing, the written submissions will not be summarized herein, rather reference thereto shall be made.
23 The applicants referred an unfair labour practice dispute which relates to promotion/appointment which is established in law under section 186(2)(a) as:
“Unfair labour practice” means any unfair act or omission that arises between an employer and an employee involving—
(a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an employee or relating to the provision of benefits to an employee;
24 I considered the parties’ respective case and evidence from the latter perspective. Similarly, the latter statutory right is subservient to constitutional rights including section 28(2) which provides that the best interests of the child are of paramount importance in every matter concerning the child. The latter constitutional right is also applicable in promotion disputes as was echoed in Governing Body of Juma Musjid Primary School v Essay 2011 (8) BCLR 761 (CC)
18. Before I address the testimony given, it is important to consider the dispute as defined in case law. The Labour Court in Jele v Premiere of the province of KwaZulu-Natal & othes (2003) 24 ILJ 1392(LC) went as far as defined ‘promotion’ in unfair labour practice disputes to include being elevated to a position of greater authority and status. Similarly, the Labour Appeal Court has through its interpretation of the section emphasised in the case of NEWU v CCAM (2007) 28 ILJ 1223 (LAC) that the unfairness claimed can be an act or omission perpetrated by the employer which relates to the employability and employment opportunities.
25 The applicants referred a case on the basis of an employment right to fair labour practices which included (as they claimed) a right to transparency and fairness during recruitment. The latter was not disputed by the respondents rather the applicants were called upon to prove the unfairness claimed and the nexus between their dispute and any conduct they claimed as unfair.
26 My assessment of the applicants as witnesses is that I considered their testimony to be credible as their account was an honest reflection and was based on the information before them. Granted the onus of proving that they were the best candidates can only be achieved upon consideration of complete information. The applicants’ further witnesses’ account emphasised that the first Respondent’s process was not fully compliant with the applicable policy rather practice was given superiority. Even on account of the first Respondent’s witness, the information before the panel at the time of recruitment was not complete.
27 I considered the credibility of the Respondent’s witness testimony to be conditional as his responses required corroboration from officials who were not availed. Evidently the law of evidence directs that the latter viva voce evidence have less substantive value. The first Respondent was also called upon to produce an array of documents per a subpoena however after only discovering some of the documents requested it had committed itself to calling witnesses who could attest to the outstanding documents and anything that would be considered as unaccounted for.
28 The Applicants’ case in this dispute focused on the alleged non-compliance by the first Respondent as the basis of unfair conduct. If one therefore has due regard to the evidence accounting for the processes leading up to shortlisting, it is evident that the exclusion of the applicants could not be rationalized. The latter is because the masterlist (as filed) was inaccurate as a single reference and the sifting adopted (as explained) was not fully compliant. The first Respondent argued that the Applicants were represented during the sifting, shortlisting and interview process by a union observer (Mr Zinja) who ought to have objected to any irregularities and given that same Mr Zinja confirmed the process being free and fair there were no irregularities. Mr Zinja testified that he noted concerns where necessary but ultimately given his role was only to observe, he observed the composition of the shortlisted candidates and from his perspective the interviewing process as fair. Mr Zinja did testify that when sifting and shortlisting was done, inaccuracies and gaps were addressed through Mr Mtshotane (the local district director who formed part of the panel) and that he (Mr Zinja) was not well versed to the new process (e-recruitment). On the other hand Dr Mceleli testified that he was trained for the use of the new process and would also rely on Mr Mtshotane to verify certain information.
29 A balance of probabilities leads one to conclude (given the cases presented) that there was an unfair conduct perpetrated. In Department of Justice v CCMA and Others [2004] BLLR 297(LAC) the court held that:
“An employee who complains that the employer’s decision or conduct in not appointing him constitutes an unfair labour practice must first establish the existence of such a decision or conduct. If the decision or conduct is not established, that is the end of the matter. If that decision or conduct is proved, the enquiry into whether the conduct was unfair then follow.” Evidently the conduct accentuated by the applicants (and subsequently circumnavigated by the first Respondent) was unfair.
30 We now turn to the nexus between the unfair conduct and the applicants. In SAPS v Safety and Security Sectoral Bargaining Council, Robertson NO Noonan (unreported Labour Court Judgement Cheadle AJ. Case Number P426/08 dated 27 October 2010: Ngcobo v Standard Bank of South Africa and Others (D439/12) [2013] ZALD 33 (25 September 2013) the courts emphasised that an applicant who claims unfair labour practice in promotion dispute bears the onus of establishing a nexus between the irregular recruitment and the unfair conduct borne by the applicants, once the latter is accomplished then the onus is on the employer to disperse the allegations of irregular conduct.
31 The applicants argued that their case sought to rectify the process of recruitment and thus the primary relief was to reverse the appointment of the second to the seventh Respondents on the basis of alleged irregularities in the sifting and shortlisting process. I therefore will apply the test of nexus to the latter as opposed to extending it to the ultimate appointments made. The evidence presented portray that the employer failed to appreciate its own processes and policies. The first Respondent’s case and evidence challenged the nexus between any non-compliance alleged and proven to the impairment claimed by the applicants. The first Respondent also claimed that the relief sought will not be in the best interest of the children given the operational disruption occasioned by a reversal of the appointment of the second to seventh Respondents. The first Respondent argued that even if there is unfairness in the process, the applicants must prove they are the best candidates given that no one enjoys a right to promotion. The first Respondent’s argued in reference to ELRC Collective Agreement 3 of 2016) that in comparison to the second to seventh Respondent, the applicants were not the best candidates thus their (the applicants) ultimate non-appointment was fair.
32 Thorough consideration of the Personnel Administrative Measures document and Sithole v Nogwaza NO [1999] 12 BLLR 1348 (LC) it is evident that a party in the position of the Applicants is entitled to be part of a process that is without imperfection given the consequences of the same imperfection in the integrity of the recruitment. Now turning to the second part of the query as emphasized in SUN INTERNATIONAL MANAGEMENT[PTY] v CCMA & OTHERS [JR 939/14] [2016] ZALCJHB 433 where it was held that in promotion disputes in promotion disputes it is not enough to merely show that there is a breach of protocol/procedures in the recruitment process. It is also necessary for an employee to show that the breach of the procedure had unfairly prejudiced him.
33 Considering the principles laid out in Noonan v SSSBC and others [2012] 33 ILJ 2597(LAC) which held that “there is no right to promotion in the ordinary course, only a right to be given a fair opportunity to compete for a post. Any conduct that denies an Employee an opportunity to compete for a post constitutes an unfair labour practice” it is evident that the applicants’ dispute for is warranted given the extent of the employer’s transgressions and how same non-compliance degenerated the integrity of the recruitment to the extent that the information relied up to reach the decision was marred with inaccurate information and makeshift decisions were adopted to make the best of a difficult situation. The officials ought to have exercised better caution in their approach.
34 The applicants argued successfully that the conduct of the employer (the first Respondent) directly prejudiced and resulted in the harm incurred.
35 Having found that the Applicants were subjected to unfair labour practice as alleged, now I have I am required to determine appropriate relief. In considering relief, I must consider the best interest of the children and whether the relief serves the public interest. In South African Police Services v Inspector Zandeberg and others (Case No. JR1162/08) the court emphasized that the needs of the community must be taken into account and can play a decisive role in the ultimate finding. Similarly in PAWC (Department of Health & Social Services) v Bikwani & othes (2002) 23 ILJ 761 (LC) the court ruled that the courts and arbitrators should be reluctant in the absence of good cause shown, to interfere with the managerial prerogative of employers in their employment and appointment process. The courts in the latter decision also ruled that arbitrators should have due regard where managerial prerogative should be respected and should only intervene when bad faith or improper motive is present.
36 The unfair labour practice experienced by the Applicants influences a wide range of remedies available to them. In the present case I conclude that a proper application of section 193(4) and section 194(4) of the Labour Relations Act 66 of 1995 is that compensation will be an appropriate relief.
37 I therefore make the following award.
AWARD
38 The Applicants have proven that an unfair labour practice was perpetrated against them by the first Respondent relating to promotion.
39 Considering the relief sought and the given the importance of conveying a remedial relief that will not be disruptive to the operations of the first Respondent, the applicants are granted compensation of six months remuneration.
40 The first Respondent is directed to compensate the second Applicant (Mr. Vava) an amount of R 286 000.02 within three months of this award. Considering the first Applicant only sought reversal of the appointments as a relief, she will not be granted relief she didn’t seek.
Yolisa Ndzuta
Panelist: ELRC